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Private Actors and Amicus Curiae in the WTO Dispute Settlement System

SATO, Yae

As WTO is an intergovernmental organization, private actors cannot participate in its

dispute settlement system as provided in the Dispute Settlement Understanding（DSU）.

However, as trade is mostly conducted by private actors in national and international mar-

kets, it is not logical to recognize that private actors do not have any interest in the WTO’s framework, including in the dispute settlement system. Therefore, the hot and important

issue concerning the WTO law is how private actors can participate in the procedure of

the dispute settlement system that is essentially structured intergovernmentally by the

DSU in force.

In referring to this, the most feasible means for such participation is to admit amicus

curiae（friends of court）to Panels or the Appellate Body, because their decisions may

have a significant effect on the private actors’ interests. As a matter of fact, some private

actors, such as NGOs and multilateral enterprises, have already submitted amicus curiae

briefs to Panels and the Appellate Body. Surprisingly, Panels and especially the Appellate

Body are favorable to amicus curiae in their proceedings.

Firstly, this article clarifies the reasons why amicus curiae are admitted in the dispute

settlement system provided in the DSU in force, by examining Panels and Appellate Body

reports. However, as amicus curiae raise some legal and practical problems in the actual

dispute settlement system, this article secondly defines these problems and proposes pos-

sible solutions to them. Finally, this article reconsiders the significance of amicus curiae

in the WTO’s framework, from the private actor’s viewpoint.

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